Legal Update: Legal win over student finance

Late last month, young people from the Let Us Learn campaign went into the UK’s highest court to hear a judgment being handed down that would affect whether or not they will be able to take up their university places in September. The case was part of a campaign, hosted at Just for Kids Law, which was founded to call for a change in the law that prevents ambitious young people who are lawfully resident in the UK from attending university.

These aspiring students have grown up in the UK and been through the UK education system, but because they hold discretionary leave to remain or limited leave to remain rather than permanent status (indefinite leave to remain), they are ineligible to get a student loan. Without a loan, their dreams of going to study alongside their peers are out of reach.

The rules under challenge in the case stipulate that in order to qualify for a loan, a student must be resident in England at the start of the course, have been ordinarily resident (which means lawfully resident) in the UK for the preceding three years, and be settled in the UK when the course begins. Other rules deal with those who hold refugee status and humanitarian protection and nationals of the European Economic Area, but they were not at issue in this case.

Right to education

The Supreme Court considered both the three-year ordinary residence requirement and the requirement that the student hold settled status (indefinite leave to remain). The questions for the court were whether either of these criteria breach the appellant’s right to education, under article 2 of the First Protocol to the European Convention on Human Rights, or whether the criteria unjustifiably discriminates against the enjoyment of that right on the basis of immigration status, contrary to Article 14 of the European Convention on Human Rights.

The appellant was a Zambian national aged 20, who had been in the UK since she was six. She had completed her entire education in the UK and had done very well, becoming the head girl at her secondary school and being offered places at university. Growing up, she had no idea what her immigration status was or that, after originally accompanying her father to the UK on a student visa, she and her mother had overstayed.

In January 2012, she and her mother were granted discretionary leave to remain until January 2015, and she has now been granted a further three years’ discretionary leave, so will become eligible to apply for indefinite leave to remain in 2018.

Denial of student loan unlawful

The Supreme Court ruled, by a majority of three to two, that the three-year ordinary residence requirement is justified, but that the settlement requirement is unjustifiably discriminatory. It held that the denial of student loans has a very severe impact on those it affects, and denying or delaying education for these individuals also harms the community and the economy.

The rules do pursue a legitimate aim, which is to target resources at those students who are likely to stay in the UK to complete their education and afterwards contribute to the UK economy. But the measure chosen to pursue that aim is not rationally connected to the aim or a proportionate way of achieving it.

The Department for Business, Innovation and Skills, which is responsible for student finance, therefore has to devise a new, more carefully tailored rule that is compatible with the European Convention on Human Rights. The Let Us Learn campaigners and hundreds of others will be hoping that this will be done without delay, so that more young people will be able to take up the opportunities they have worked so hard for.